McGuire1995 - Repeat Players in the Supreme Court: The Role...

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Unformatted text preview: Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation S ueeess Kevin T. McGuire University of Minnesota How important are lawyers in the decision making of the US. Supreme Court? Although legal ex— pertise has long been assumed to benefit certain litigants, the frequency with which lawyers appear be~ fore the Court has not been directly measured. In this article, I argue that, quite apart from the status of different litigants, lawyers can be viewed as repeat players who affect judicial outcomes. Using data from the US. Supreme Court Judicial Data Base with data from the United States Reports. I propose and test a theory in which the informational needs of the Court are better met by more credible litigators. Thus, for example, a more experienced lawyer significantly raises the probability of a party’s success. The find— ings testify to the efficacy of experienced counsel, irrespective of the parties they represent. In the US. Supreme Court, virtually all of the advocacy is performed by lawyers. Some of them have considerable experience in Supreme Court practice; others have very little. The impact of experienced counsel who appear before the justices, however, remains largely untested. To be sure, there is substantial evidence that parties which litigate frequently—the repeat players (Galanter l974)—accumulate disproportionate success rates, but parties and lawyers are not necessarily inter— changeable (Sheehan, Mishler, and Songer 1992; Songer and Sheehan 1992). The literature generally considers litigation expertise to be endemic to repeat players, not a factor that works independent of litigant status. For the most part, however, the expertise of counsel has largely been presumed rather than directly specified. What unique role does the litigation experience of lawyers play in the decision making of the US. Supreme Court? I argue that, quite apart from the status of the parties, the litigation experiences of the counsel who represent them are a significant determinant of judicial out— comes. Drawing largely upon an extra—legal framework, I present results of an analysis of the influence of the experienced litigator on decisions on the merits in the Supreme Court from 1977 to 1982. Using data from the United States Reports and other sources, I have determined, for each orally argued case, if a litigant was represented by counsel with a greater degree of Supreme Court experience than I am grateful to John A. Clark and Charles E. Smith, Jr., for their insightful comments and criticisms. THEJOLRNAL ()F POLITICS, Vol. 57, No. 1, February 1995, Pp. 187—96 © 1995 by the University of Texas Press, PO. Box 7819, Austin, TX 78713~78l9 Copyright © 2001 . All Rights Reseved. 188 Kevin T. McGuire that of the opposing attorney. The results suggest that lawyers who litigate in the high court more frequently than their opponents prevail substantially more often. Indeed, even when one controls for the status of the parties, as well as other factors, such as the number of amicus briefs, the presence of the solicitor general as an am— icus curiae, and the ideological direction of the lower court, lawyers still make a sig nificant contribution to success in litigation. LAWYERS AND SUPREME COURT DECISION NIAKING Extra’legal explanations have shed a good deal of light on the nature of decision making in the Court, and within that general framework the theoretical benefits that attend the repeat player have received substantial empirical support (see, e.g., Caldeira and Wright 1988; Emmert 1992; Epstein and Kobylka 1992; Lawrence 1990; O’Connor 1980; Segal and Reedy 1988; Songer and Sheehan 1992; Sorauf 1976; Vose 1959; Wheeler et al. 1987; but see Sheehan, Mishler, and Songer 1992). Still, one of the primary inferences consistently sounded—that superior litigation expertise breeds success—has also gone largely untested. That is, although schol— arly analyses of litigation outcomes have mustered considerable data to document the ample successes of those who are theoretically the beneficiaries of experienced counsel, these analyses have generally used only plausible surrogates for litigation experience, not quantitative measures of genuine legal expertise. This is under— standable, since, as Songer and Sheehan (1992, 238) note, “specific information about the wealth of particular parties in a given case or the relative litigation expe» rience of those parties is often not available in court opinions.” As a consequence, the importance of legal skill, even the solicitor general’s, remains open to specula— tion (Segal 1991, 379—80). A number of researchers have provided more direct ev7 idence that litigation expertise does matter, but that evidence is limited, either to particular areas of the law or to specific litigants (Epstein and O’Connor 1988; George and Epstein 1992; McGuire and Caldeira 1993); furthermore, no one has undertaken to measure directly the amount of litigation experience individual lawyers have in all cases before the justices. How would a lawyer’s experience directly affect the Court’s overall decision making? I assume that the members of the Court are motivated by ideological prer erences and seek to resolve cases in a manner that most closely approximates their own individual views (Segal and Cover 1989). So, in any given case, the justices are apt to follow their attitudinal instincts when faced with the clash of two or more competing values. Those competing values, however, are articulated to the Court by lawyers; I assume, therefore, that the degree of experience that they have before the Court has implications for the manner in which the justices view the issues in a case. In particular, I argue that “lawyers are themselves RPS” (Galanter 1974, 114) and that, as repeat players, members of the bar who litigate in the Court with fre— quency, therefore, have an interest in maintaining their credibility (see, e.g., Sorauf 1976; Vose 1959). Repeat Players in the Supreme Court 189 In making decisions, the justices have certain informational needs; they require a clear and faithful focus on the issues presented in a case, an understanding of the relationship of those issues to existing law, a clarification of uncertainties, and a view of the implications of a decision for public policy, tempered with candor (see Harlan [1955] 1985; Wasby 1982). The lawyers~particularly those who litigate with frequency—have certain professional needs; they need to motivate the jus— tices to view their cases sympathetically, to simplify the justices’ informational re— quirements, to salve the concerns of the members of the Court, to highlight the argument’s immunity to criticism, and, importantly, to make a positive and memo— rable impression (Shapiro 1984). In brief, “we would expect them to seek to opti— mize the clients’ position without diminishing that of lawyers” (Galanter 1974, 119): the structure of the relationship is one that allows——and in fact encourages— experienced members of the bar to establish constructive links to the justices (99). Because of their long—term links, lawyers whose Supreme Court practices tran— scend the single case have considerable incentive to provide candor in both their briefs and oral arguments. This is certainly not to suggest that the Court, of neces- sity, resolves cases in favor of the more experienced (and presumably more trust— worthy) counsel; if that were so, the solicitor general would never lose a case on the merits. What this approach does assume, consistent with our notions of the benefits associated with repeat player status, is that the greater the degree of previous expe— rience a lawyer has in litigating before the justices, the greater his or her credibility and likelihood of success. Under this theoretical framework, I argue that a lawyer’s experience before the high bench can be taken as a measure of that attorney’s expertise in litigating in the Supreme Court.1 Such expertise is both valuable—since so few lawyers practice in the Court on a sustained basis—and valued—since the informational needs of the justices are so great. Credibility being a scarce commodity, the members of the Court should reward the more experienced lawyers by giving their written and oral arguments more favorable consideration. Again, this is not to suggest that litigation strength is determinative. Rather, I posit that experience significantly alters the probability of a party’s success. When neither party enjoys the comparative advan— tage of higher—quality counsel, there should be no traceable effects of litigation ex— perience on the outcome; whether both parties are represented by novices or skilled veterans, the outcome should be unaffected by representation (see Wheeler et a1. 1987, 410—12). Apart from litigation expertise, I recognize that myriad other factors are likely to be brought to bear in the justices’ decision making. Certainly not the least of such considerations is the status of the parties: that the “haves” should garner a dispro— portionate share of judicial victories, even when litigation expertise is taken into 1There are surely drawbacks to such an assumption; having a number of Supreme Court cases to one’s credit, for instance, does not necessarily guarantee that a lawyer has gleaned proficiency from the experience. Still, a lawyer’s Supreme Court practice is a direct—and therefore probably a better—indi— cator of expertise, since expertise has been largely a matter of conjecture based upon litigant status. Copyright © 2001 . All Rights Reseved. 190 Kevin T. McGuire account, is well established. Of course, aside from those directly involved in cases before the Court, the voices ofother interested parties#organized interests in gen7 eral (Epstein 1991) and the solicitor general in particular (Segal 1988; Segal and Reedy l988)—are often heeded by the justices (but see Songer and Sheehan 1993). Thus, a party’s probability of success will likely be increased by its ability to attract to its pleading the support of broad national interests. One basic behavior of the Court is its tendency to accept for plenary review those cases in which it intends to reverse the decision of a lower court (see, e.g., Baum 1977). So, for an ideologically driven Court, whether the lower court’s decision was liberal or conservative might be a matter of some consequence. The Burger Court, while clearly more conservative than its predecessor, evinced liberal inclinations on both civil liberties (Baum 1988) and economic issues (Hagle and Spaeth 1992). For the years I examine, the justices showed considerable support for the liberal posii tion, particularly in economic cases (Segal and Spaeth 1989, 476); one might exi pect, therefore, that the Court would be prone to reverse conservative decisions and to affirm liberal ones. Apart from these factors, are the assumptions regarding the impact of litigation experience supported across a broad sample of the Court’s agenda? ANALYSIS The general proposition to be tested is whether the party with more litigation ex~ pertise in the Supreme Court has a greater likelihood of success in cases on the merits. As scholars have noted, data on the degree of experience of counsel are fairly fugitive. In what ways, then, can direct practice before the Court be gauged? I have elected to turn to the pages of the United Sizzler Reports, where the lawyers who appear before the Court are duly noted. Over a six—year sample of the Court‘s docket, from the 1977 term through the 1982 term, I gathered data on the identity of the lawyers who argued cases and who participated on briefs; for each lawyer, 1 determined the number of cases in which he or she was involved over that time pei riod.2 This method provides a reasonably reliable measure of the litigation experii ence of the bar of the Supreme Court. My measure of litigation expertise for a given party is the total number of Supreme Court cases in which that party’s lawyer participated from 1977 through 2In virtually every case, the names of the lawyers appearing on behalf of each party are printed after the syllabus; these lawyers can be assumed to be admitted to practice before the justices, since “the Court generally will not give official recognition in its Reports or otherwise to attorneys who are not members ofits Bar” (Stern, Gressman, and Shapiro 1986, 732). On occasion, la“ yers whose names a1» pear on the briefs are not reflected in the US. Rep/ms: thus, the US. Repurls, to some extent, underi report the participation of counsel. Ordinarily, the attorney who argued the ease for a given side is listed first as having “argued the cause,“ with additional counsel who participated being listed as having been “with him or her on the brief,“ 1n collecting these data, when a name appeared in more than one case, 1 confirmed the identity of the lawyer by consulting the Brief/i tmu’ Recon/t oft/w l iii/ed Sitlh’f Supremt’ Cour! and the illurn'nda/yiHuhbi’l/ Nun/ma/ Lawyer [)Ircrmry. ()f the 3,915 different lawyers active during this period, 709 appeaer in more than one case. Repeat Players in the Supreme Court 191 1982. (Where multiple counsel represented a single party in a case, the value of liti— gation expertise is the number of cases of the most experienced lawyer.)3 In exam- ining this cross—section of the Court’s docket, I assume that the number of cases in which a lawyer was involved over this time period can be taken to be an indicator of a general pattern of participation before the Court. That is, lawyers involved in nu— merous cases within the sampling frame are more likely to have litigated additional cases before 1977 and after 1982; lawyers who appeared less frequently within those six years are less likely to have litigated additional cases. In short, I posit that the litigation experience of a lawyer at time t is a good predictor of experience at times t— l and t + 1.4 To test the asSumption that the party with the more experienced counsel has a greater likelihood of success, I combined these data on lawyer experience with data from the US. Supreme Court judicial Data Base (N = 916).5 The dependent vari— able is the outcome of the case, whether or not the petitioning party won on the merits. Naturally, since these data cover such a broad cross—section of the justices’ agenda, I make no pretense of providing a precise accounting for the Court’s gen— eral behavior. Yet even at this level of aggregation, there are, as I have noted, a number of other relevant variables for which one can control. Among these vari— ables are the status of the parties involved,6 the number of briefs amicus curiae on 3This approach is attractive for its parsimony, but it does ignore potentially important information, such as the number of lawyers and the differences in experience between them. One might, for instance, calculate the average number of cases per side. Fortunately, alternatives such as these tend to be strongly related to the measure I employ. ‘So, irrespective of whether a case was argued in, say, 1979 or 1982, the value of counsel‘s experience is equal to his or her total number of cases on the merits across all six years. Naturally, this approach does have its shortcomings. In earlier cases, for example, lawyers with multiple appearances are assumed to have more experience than they actually had at the time the case was heard. Moreover, this method does not control for the improvement in expertise that might be accumulated with each additional case. Still, the alternative—keeping a running tally of each lawyer’s record and applying it in each case—— poses a far greater predicament: it assumes that 1977 is the starting point for members of the Supreme Court bar. Under such an approach, one would assign a value of one case to the solicitor general in his first case in 1977 and a value in excess of two hundred for his last case in 1982, hardly a sound strategy. 5The U. S. Supreme Court Judicial Data Base has some 997 cases that were orally argued and decided by full opinion during this time period. In 67 cases, the lawyers representing at least one of the parties were unclear or not specified. Furthermore, in 16 cases—two of which also presented uncertainties re— garding the lawyers—the ideological direction of the lower court was not specified as liberal or conser— vative. These 81 total cases were excluded from the analysis. 6The status of an individual party is derived from the advantages in litigation that it is presumed to possess. Following the lead of Wheeler et al. (1987), as well as Sheehan, Mishler, and Songer (1992), I have classified 10 litigants on an ordinal scale, ranging from weakest to strongest, as l for poor individ— uals, 2 for minorities, 3 for individuals, 4 for unions, 5 for small businesses, 6 for businesses, 7 for cor- porations, 8 for local governments, 9 for state governments, and 10 for the federal government. (For more information on the coding of these categories, see Sheehan, Mishler, and Songer 1992, 470ml.) In a few instances, parties did not seem to fit within any ofthese categories; for those cases, I simply set the party’s status equal to the mean of the petitioner or respondent status, depending upon which side the party represented. The value of this predictor is equal to the status value ofthe petitioner minus the Sta— tus value of the respondent. For a similar example, see'Songer and Sheehan (1992). Copyright © 2001 . All Rights Reseved. 192 Kevin '1‘. McGuire TAB] .14; 1 MODEL OF LITIGATION SUCCESS IN THE US. SUPREME COURT, 1977—1982 _____________________——————————-—- Variable [1 B 1‘ / Constant .39 832*“ Ideological direction of lower court on civil liberties issue .10 .15 1.22 Ideological direction oflower court on economic issue .18 .20 210* Solicitor general‘s amicus brief urging reversal .84 .33 2.82M Solicitor general’s amicus brief urging affirmance <80 .33 43.61%“6 Amicus curiae briefs .06 .25 274W Litigant status .04 .38 2.659”6 Lawyer experience .21 .39 3.6416W Note: LV = 916 (598 petitioner wins, 318 respondent wins); dependent variable equals 1 where the petitioner won, 0 otherwise; B*equals the product of the coefficient and its standard deviation divided by the Standard deviation of the dependent variable; Pseudo-R2 = .15; “xo of cases in modal cate7 gory = 65, "/0 correctly classified = 69, 0/6 reduction in error = 11; —2LLR = 83.43 (p < .001). *p < .05; “I; < .01; *“p < .001. each side of the case,7 the presence of an amicus brief filed by the solicitor general urging reversal 0r affirmance (in each instance, coded as 1 if present, 0 otherwise), and the ideological direction of the lower on civil liberties and economic issues.“g Finally, to assess the impact of legal representation in the Court, 1 determined which party had a more experienced lawyer’the respondent (coded as —1), the pe— titioner (coded as 1), or neither party (coded as 0). I have estimated the effects of these variables on the probability of the petitioner’s success, where the dependent variable is coded as 1 if the petitioner won in the Supreme Court and 0 otherwise, using a maximum likelihood probit analysis (Aldrich and Nelson 1984), and the re— sults are presented in table 1. In general, the model performs reasonably well: the chi—square value is sig— nificant; the fit, given the sample’s broad cross—section of cases, is satisfactory (see McKelvey and Zavoina 1975); all of the variables have the expected sign and, with the exception of civil liberties issues, have statistically significant coefficients. 7I collected additional data on the frequency and type of participation ofamici curiae from the LS. Reports. This variable is equal to the total number ofamicus briefs filed urging reversal minus the total number of amicus briefs filed urging affirmance. Of course, my assumption about litigation experience and the credibility of argument probably applies with comparable force to amici. Likewise, the infre— quent appearance of amici at oral argument might also affect outcomes; sadly, I do not have data on the frequency of appearance ofdifferent organized interests in either capacity. “Consistent with the categories in the US. Supreme Court Judicial Dam Barr, 1 define civil liberties issues as those cases which concern criminal procedure, civil rights, the First Amendment, due process, and privacy. Cases that concern unions and general economic and commercial acti\ity are treated as economic issues (see Segal and Spaeth 1989). For civil liberties issues, the variable is coded as ~1 if the ideological direction of the lower court was liberal, 1 if conservative, and 0 if no civil liberties issue was present: similarly, for economic issues. the variable assumes a value of'l ifthe ideological direction of the lower court was liberal, 1 if conservative. and 0 ifno economic issue was present. “memmgwwrwwww - Repeat Players in the Supreme Court 193 Importantly, while illuminating some of the forces that influence the Supreme Court’s decision making, it underscores the special impact of lawyer expertise. Clearly, the role of experienced counsel remains strong, even when other factors— the relative status of the parties, in particular—are held constant. The primary hypothesis was that the justices place greater trust in the lawyers whose arguments they hear and whose briefs they read most frequently, and these results suggest confirmation of such a View. Lawyers who are active members of the bar of the Supreme Court, like many who are advocates in the process of federal policy~making (Nelson et a1. 1987), value their reputations; the Court likewise val— ues reliable, credible counsel. These benefits that flow from a lawyer’s expertise op— erate quite independently from the parties that they represent. If expertise were of no discernible consequence, its coefficient would have been marginalized by the status of the parties. This, however, is not the case; the various assets generally as— sociated with the “haves” are evident in the model,9 but the independent effects of the advantages of a more experienced practitioner are especially pronounced.10 In addition to the status of the parties and the expertise of counsel, organized in— terests make a substantial contribution to the outcomes of cases. The relative num- ber of amicus briefs supporting the parties, for example, varies predictably with the likelihood of their success. Among all amici curiae, the Court relies heavily upon the advocacy of the solicitor general. Thus, it is scarcely surprising to find members of the Court disposed toward those with whom the federal government joins forces. Furthermore, the manner in which lower courts decided different types of legal is— sues seems to have been of import. As expected, the justices displayed a marked sympathy for economic underdogs. In civil liberties cases, the Court’s liberal ten— dencies are also evident, though less distinct. Controlling for these competing explanations strengthens the empirical case that can be made for the expertise of the Supreme Court bar as a strong independent predictor of the Court’s decision making. From a substantive perspective, though, just how important is the expertise of counsel? Recall that the theoretical frame— work was one in which a lawyer’s experience was, while important, not determina— tive. That is, the arguments of a more experienced lawyer should receive greater consideration from the members of the Court, but mere expertise alone should not control the outcome. To that end, a clearer picture of the effect of expertise can be produced by generating estimated probabilities of litigant success. If, all other 9This finding is inconsistent with recent scholarship (Sheehan, Mishler, and Songer 1992). Of course, these data are only cross—sectional and cover a relatively brief interval. In contrast, Sheehan, Mishler, and Songer, while using the same operationalization of party status, employ time—series analy- sis across a much longer period. It may be that litigant status did, in fact, matter during the l977~ 1982 period; alternatively, as Sheehan and his colleagues might argue, it may be that the justices were simply ideologically disposed toward the “haves” at that time. 10This is not a spurious manifestation of party strength: the correlation between party status and liti— gation expertise, while strong (.52), is far from perfect. Moreover, the frequent appearance of the solic— itor general does not explain these differences in experience; when the correlation is calculated to partial out the effects of the solicitor general, the coefficient dips only to .42. Copyright © 2001 . All Rights Reseved. 194 Kevin T. McGuire things being equal, neither lawyer has more experience, the estimated probability of the petitioner’s success is .66—approximately the rate at which the petitioner se— cured a favorable outcome from the Court in the cases in this sample. That party’s likelihood of winning increases to .73 when represented by a more seasoned apr pellate advocate. Conversely, when the net advantage in expertise favors the ref spondent’s counsel, it augurs fewer victories for the petitioner, whose estimated win—ratio dips to a .58 probability. Substantively, these estimates make a good deal of sense, for no matter which side has more expertise the petitioner still wins in a majority ofcases: as anticipated, litigation experience facilitates success; it does not, however, guarantee it. ” How important is the expertise of lawyers compared to other factors in the model? The standardized maximum likelihood estimates (McKelvey and Zavoina 1975) offer an answer, albeit one that must be viewed with some caution: the rela— tive experience of the lawyers who represent parties is apparently as important as who the parties are. The value for counsel’s experience, 3* = .39, is the largest in the model and is rivaled only by the status of the litigants and the amicus briefs of the solicitor general. Of course, it is difficult to say with precision how important litigation experience is compared to party status, since the model lacks more direct measures of litigant attributes, such as financial resources, long—term litigating strategies, and the like. Notwithstanding this weakness, the analysis does provide substantial evidence to confirm what has long been suspected—that litigants suc— ceed in significant measure as a function of their representation. C(Ncrcsiox The bar of the Supreme Court provides a vital link between legal issues and the members of the Court. As such, they are gatekeepers, determining how issues are presented to the justices. Like many governmental decision makers, the justices need reliable information and thus place a premium on its more credible suppliers. To be sure, this tendency is tempered by the ideological disposition of the Court, as well as the availability of ideas, arguments, and intelligence from alternative sources like the solicitor general and myriad other amici. Even when such influ— ences are taken into account, though, the effects oflawyers still persist. What implications does this analysis have for our understanding ofthe Supreme Court? On the one hand, the results are presented at such a broad level that they do not permit the disentangling of the many other factors which no doubt play "Note that this analysis and the theory that undergirds it are predicated on the assumption that the relatiyc difference between lawyers is the relevant consideration, not the absolute number of cases each party‘s counsel has. Additional analysis provides support for this belief: when the numbers of cases that the lawyers on each side had are introduced into the equation, they provide little additional predictive utility; in contrast, the importance of the experience comparisoniwhich lawyer had more cases#re~ mains strong. This is consistent with the view, offered by Songer and Sheehan (1992, 257), that “the addition of resources initially will increase the chances of success substantially [but] at some point, the continued addition of resources will become irrelevant,“ Repeat Players in the Supreme Court 195 substantial roles in resolving cases within particular areas of the law. On the other hand, because the analysis covers an ample cross—section of the Court’s plenary docket, we have good reason to believe that the effects of advocacy transcend parochial areas of the Court’s jurisprudence. That is, expertise is a positive value, irrespective of the case. These results resonate with much of the literature on the effects of repeat players in the judicial process. There are, however, divergent views, among them the sug— gestion that, at least at the level of the Supreme Court, litigants and their relative legal resources are less important when viewed over time against the ideology of the bench (see Sheehan, Mishler, and Songer 1992). It may be that the longitudinal ef— fects of counsel are stable while the fates of various parties follow the ebb and flow of the Court’s changing ideological complexion. Given that the justices’ caseload has increased so substantially over the last half—century, one might speculate that the significance of counsel would be magnified with successive growth in the Court’s docket. Importantly, the analysis does permit one to conclude that the reliability of counsel as a source of information is a commodity upon which the justices appar— ently place some value. 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McGuire1995 - Repeat Players in the Supreme Court: The Role...

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